Monthly Archives: November 2013

On 11 September 2013, leave to appeal was granted in The Go Star v Daebo International Shipping Co Ltd, as noted on our case page. The case involved the charter of a ship, and an allegation that the new charterer had committed the tort of procuring a breach of contract. The appeal to the High Court sought to ascertain what was the lex loci delicti (in other words, the law of the place where the tort was committed). The appellants sought to argue that the relevant law was Chinese law.

There is only one set of offences under federal law that attracts a mandatory sentence, and perhaps unsurprisingly these offences all relate to people smuggling. Upon conviction of a crime of aggravated people smuggling under the Migration Act 1958 (Cth), the sentencing judge must impose a jail term of at least five years. In Magaming v The Queen [2013] HCA 40, six of the seven judges of the High Court upheld the validity of this mandatory sentencing provision under the Australian Constitution. But this is only part of the story. After all, the principal character is Bonang Darius Magaming, a 19 year old Indonesian fisherman who was recruited to steer the boat which carried 52 asylum seekers to Australia. On 6 September 2010, his boat was detained by the Australian Navy near Ashmore Reef. Mr Magaming pleaded guilty to the aggravated offence of smuggling at least five people into Australia. At sentencing, the judge described Mr Magaming as ‘a simple Indonesian fisherman’ and explained that but for the mandatory sentencing provision, he would have imposed a lighter sentence. The judge said:

The seriousness of [Mr Magaming’s] part in the offence therefore falls right at the bottom end of the scale. … In the ordinary course of events, normal sentencing principles would not require a sentence to be imposed as heavy as the mandatory penalties that have been imposed by Federal Parliament. However, I am constrained by the legislation to impose that sentence.

Neither the pleadings, nor the judgment, nor media reports manage to fill in many of the gaps in Mr Magaming’s story. Why did he decide to join the crew? How was his mental and physical health? How did the imposition of a mandatory sentence which the judge considered well beyond the severity of the sentence that would have otherwise been imposed affect him? Continue reading →

High Court watchers sometimes speculate that the judges’ willingness to grant special leave varies inversely with their current level of business. Friday’s application hearings show no support at all for that theory.

Having just heard a complex challenge to NSW campaign funding laws and with closely watched expedited hearings on marriage equality and the WA Senate results in the pipeline, the Court granted eight applications for special leave – the highest number in a single day since September 2011 – from the following (highly complex) cases: Continue reading →

There was a moment of relative drama at the start of Tuesday’s full court hearing of the challenge by various unions to NSW campaign financing laws. Neil Williams SC, counsel for the Commonwealth (intervening, along with several other states, in support of the NSW laws) told the Court that he needed to draw attention to information that he had just learnt: that a judge of the Court had written an advice that touched on the validity if the NSW law.

The Court adjourned ‘briefly’ to let the parties discuss the issues, but more than that appears to have happened. Continue reading →

Monday’s second directions hearing in Cth v ACT fixed a firm date for the full court hearing: 3 and 4 December. That puts the hearing — and perhaps the Court’s orders — ahead of any possible marriages under the yet-to-commence new law’s one-month notice period.

Chief Justice French also settled eight questions for the Court to resolve. Unfortunately, the transcript only reveals the final two, concerning the Court’s ultimate orders and who pays the costs. The rest are contained in an unpublished amended statement of claim lodged by the Commonwealth on 28 October.

Nevertheless, the transcript did reveal two things that won’t be at issue in early December: Continue reading →

Asylum seeker policy has been a polarising subject in Australian politics for more than a decade and it continues to be so with the recently-elected Abbott government attempting to impose its perspective on the political debate on the topic by mandating asylum seekers arriving by boat be referred to as ‘illegal’. Consecutive federal governments have introduced increasingly harsh schemes to deal with the perceived influx of people arriving in Australian territorial waters by boat to seek asylum. The High Court is yet to hear a case challenging the legality of the current arrangement of transferring asylum seekers to Papua New Guinea, Plaintiff S156/2013 vMinister for Immigration, Multicultural Affairs and Citizenship (transcripts of directions hearings here and here).

Plaintiff M79/2012 v Minister for Immigration and Citizenship[2013] HCA 24 (Plaintiff M79) deals with another aspect of the asylum seeker statutory regime: the validity of a temporary safe haven visa granted to a person who had not made an application. In this instance, the Minister granted a temporary safe haven visa to the plaintiff, a Sri Lankan national who arrived by boat on Christmas Island in February 2010 seeking Australia’s protection. The validity of the visa depended on the criteria the High Court determined the Minister was bound to consider when granting the visa, and whether the Minister had addressed those criteria. A majority of the Court found that the sole criterion binding the Minister was whether or not it was in the ‘public interest’ and that it was within the Minister’s discretion to determine what factors were relevant to that interest. Interestingly, Plaintiff M79 could signify that the High Court is beginning to take a more deferential approach to ministerial conduct in deciding to grant or decline visa applications than it has in the recent past, including in the case that rejected the previous government’s so-called ‘Malaysian solution’. Continue reading →